Kudelle v. Vizzard Inv. Co.

• Decision Date: 28 April 1922
• Citation: 240 S.W. 54,194 Ky. 604
• Parties: KUDELLE v. VIZZARD INV. CO.
• Court: Kentucky Court of Appeals

240 S.W. 54

194 Ky. 604

KUDELLE v. VIZZARD INV. CO.

Court of Appeals of Kentucky.

April 28, 1922

Appeal from Circuit Court, Leslie County.

Action by Verona Kudelle against the Vizzard Investment Company.Judgment for the latter, and the former appeals.Appeal dismissed.

Morris & Jones, of Frankfort, and Cleon K. Calvert, of Pineville for appellant.

Jesse Morgan, of Hazard, E. H. Dunn, of St. Petersburg, Fla., and B. P. Wooton, and Wootton & Wootton, all of Hazard, for appellee.

THOMAS J.

The judgment appealed from was rendered by the Leslie circuit court on October 23, 1916.A copy of it was filed with the clerk of this court, and an appeal granted, on October 11 1918, just 12 days before the expiration of the time allowed for taking an appeal.On the same day the appeal was granted and pursuant to notice the appellant moved and obtained leave for time to file the transcript in this court till January 1 1919.It was not filed within the time given, nor was there any motion made or order entered extending that time, and no motion whatever was made in the case until September 24, 1920, when appellant moved for permission to file the transcript, which motion was sustained 4 days thereafter, and the transcript was accordingly filed.Before the submission of the cause, and on January 28, 1921, the appellee entered motion to dismiss the appeal upon the ground that the transcript had not been filed as required by the prevailing practice, which motion was passed till the hearing of the appeal on its merits, the case not being submitted in this court until March 11 thereafter.

Section 738 of the Civil Code, prescribing the time within which the transcript for an appeal to this court may be filed, says:

"The appellant shall file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time; as, for cause shown, the court may do."

Section 740 in part provides that--

"If he[appellant] fail to file the transcript within the time allowed by section 738, or by the court pursuant thereto, his appeal shall be dismissed."

And section 745 provides that--

"An appeal shall not be granted except within two years next after the right to appeal first accrued," unless the party applying was laboring under certain specified disabilities, which do not exist in this case.

The general rule of practice, as adopted and enforced by a majority of the courts, as will be seen from Elliott on Appellate Procedure, §§ 111 and 128, and 3 Corpus Juris, 1069, is that every step necessary to perfect and complete the appeal must be made within the time prescribed for taking it, which, as we have seen, with us is two years from the rendition of the judgment.But this court has construed the sectionssupra, of our Code as giving the right to the appellant to file the transcript "twenty days before the first day of the second term of said court next after the granting of the appeal," although that time might be more than 2 years after the rendition of the judgment, because of the fact that the appeal was not prosecuted from an order granting it by the trial court, but by filing a copy of the judgment with the clerk of this court before the expiration of the 2 years, and obtaining leave to thereafter file the transcript within a designated time.However, as will be seen from the opinions of this court cited below, the transcript must be filed within the extended time, or within a renewal of the extension made before it expired, else the right of appeal is lost.

The above requirements are mandatory, and even this court is without jurisdiction to disregard them by permitting the transcript to be filed contrary thereto.Wearen v Smith,80 Ky. 216;Western Union Telegraph Co. v. Johnson,100 Ky. 589, 38 S.W. 1043, 18 Ky. Law Rep. 982;Hernstein v. Depue,65 S.W. 805, 23 Ky. Law Rep. 1498;Langhorn, Johnson & Co. v. Wiley,120 Ky. 511, 87 S.W. 266, 27 Ky. Law Rep. 908;Home Building Association v. Bruner,134 Ky. 361, 120 S.W. 306;Edleson v. Edleson,173 Ky. 252, 190 S.W. 1083;McCallister's Adm'r v. Stanley,186 Ky. 836, 218 S.W. 237;Hays v. Jenkins,190 Ky. 518, 227...